Case 1:14-cv-00147-PB Document 19 Filed 01/09/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

SIG SAUER, INC.,

Plaintiff
v.
B. TODD JONES,
Defendant

)
)
)
)
)
)
)

Civil Action No. 1:14-cv-00147-PB

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

AND REQUEST FOR ORAL ARGUMENT
Plaintiff Sig Sauer, Inc. (Sig Sauer), by counsel, pursuant to Fed.R.Civ.P. 56(a), hereby
moves this Honorable Court for summary judgment. In support of this motion, Sig Sauer states
as follows:
1.

Sig Sauer has brought this action for judicial review under the Administrative

Procedure Act and for declaratory relief regarding whether a device designed and intended for
use as a muzzle brake to reduce recoil in the discharge of a rifle is, despite this intent, a part
intended only for use in the assembly or fabrication of a firearm silencer in the meaning of 18
U.S.C. 921(a)(24). Based on the plain statutory text and controlling First Circuit precedent,
United States v. Crooker, 608 F.3d 94 (1st Cir. 2010), Sig Sauer contends that the device does
not come within that definition, and is not a silencer. Sig Sauer is entitled to judgment as a
matter of law that its muzzle brake device is not a silencer.
2.

Sig Sauer has designed a muzzle brake that reduces both recoil and muzzle rise

when a shot is discharged. It does not silence, muffle, or diminish the report of a firearm, and
Sig Sauer has repeatedly made clear that it is not a part intended only for use in assembly of a

Case 1:14-cv-00147-PB Document 19 Filed 01/09/15 Page 2 of 4

silencer. Defendant ATF does not dispute any of these facts. The statutory text and legislative
purpose of 18 U.S.C. 921(a)(24) make clear that a muzzle brake, functioning as a muzzle
brake, is not a part intended only for use in assembly or fabrication of a silencer, even if it
could be converted to a silencer by the addition of other parts. In fact, controlling precedent in
the First Circuit precludes the application of the terms any part intended only for use in a
silencer to a muzzle brake. Crooker and other cases focus on intent, and find that where a
complete device could be adapted for use as a silencer, but is not solely for that purpose, it is
not a silencer.
3.

As set forth in detail in the accompanying memorandum of law, Sig Sauer

submitted the subject muzzle brake to the Firearms Technology Branch (FTB) of the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) for classification and subsequently
requested reconsideration of the decision. The FTB has issued four classification letters, each
time asserting that it has determined the device to be a silencer. Each time, FTB failed to
articulate an explanation for its classification that was in accordance with the law. FTB has even
acknowledged the use of the device as a muzzle brake, yet still concluded that it is a part
intended only for use in assembling or fabricating a silencer. FTBs decision, which constitutes
final agency action by ATF, was arbitrary, capricious, and not in accordance with the law.
4.

ATF has, at this juncture, considered the classification of Sig Sauers muzzle

brake on at least four separate occasions, both before and after suit was filed, after the dispositive
Crooker case was brought to its attention, and once on a requested remand. Each time, the
agency came to the same incorrect determination, classifying the device as a silencer, even while
admitting that the muzzle brake increases (not decreases) the decibel level of the rifle shot. It is
2

Case 1:14-cv-00147-PB Document 19 Filed 01/09/15 Page 3 of 4

clear that the agency has not followed, and will not follow, the law, and that a further remand in
this case would be a futile endeavor. A determination by this Court is necessary to grant Sig
Sauer the relief to which it is entitled.
5.

In support of this motion, and pursuant to Local Rule 7.1(a)(2), Sig Sauer submits

the attached Memorandum of Law, which includes citations to the administrative record,
supporting declarations, and other exhibits. An oral hearing on this matter is requested.
WHEREFORE, Plaintiff Sig Sauer, Inc. respectfully requests that this Court:
(A)

Grant summary judgment in favor of Sig Sauer;

(B)

Hold unlawful and set aside the FTBs determination, which is final agency action
by ATF, as being arbitrary and capricious, and not in accordance with law;

(C)

Issue a declaratory judgment that the muzzle brake at issue is not a firearm
silencer or firearm muffler in the meaning of 18 U.S.C. 921(a)(24); and

(D)

Grant such other and further relief as may be just, equitable, and appropriate.

Case 1:14-cv-00147-PB Document 19 Filed 01/09/15 Page 4 of 4

Respectfully submitted,
Date: January 9, 2015
SIG SAUER, INC.
By counsel
/s/ Stephen P. Halbrook
Stephen P. Halbrook, Pro Hac Vice
Suite 403
3925 Chain Bridge Road
Fairfax, VA 22030
(703) 352-7276
(703) 359-0938 (fax)
protell@aol.com
/s/ Mark C. Rouvalis
Mark C. Rouvalis, NH Bar No. 6565
Kenton J. Villano, NH Bar No. 21220
City Hall Plaza
900 Elm Street
Manchester, N.H. 03101
(603) 628-1329
(603) 625-5650 (fax)
mark.rouvalis@mclane.com
kenton.villano@mclane.com
Counsel for Sig Sauer, Inc.

CERTIFICATE OF SERVICE
I hereby certify that this document was filed by the ECF system and served on all counsel of
record electronically as a result thereof on the 9th day of January, 2015.
/s/ Mark C. Rouvalis
Mark C. Rouvalis

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE
SIG SAUER, INC.,
Plaintiff

)
)
)
)
)
)
)

v.
B. TODD JONES,
Defendant

Civil Action No. 1:14-cv-00147-PB

MEMORANDUM IN SUPPORT OF PLAINTIFFS

MOTION FOR SUMMARY JUDGMENT
Pursuant to Fed.R.Civ.P. 56, Plaintiff Sig Sauer, Inc., sets forth the following facts,
reasons, and authorities in support of its motion for summary judgment.
This is an action for judicial review under the Administrative Procedure Act and for
declaratory relief regarding whether a device intended for use as a muzzle brake to reduce recoil
in the discharge of a rifle is, despite that intent, a part intended only for use in the assembly or
fabrication of a firearm silencer, and is thus a silencer in the meaning of 18 U.S.C.
921(a)(24). Based on the plain statutory text and controlling First Circuit precedent, United
States v. Crooker, 608 F.3d 94 (1st Cir. 2010), the device does not come within that definition.
A ruling that the muzzle brake at issue, like other muzzle brakes, is not a silencer will
allow Sig Sauer to market the product without burdensome restrictions on the company,
distributors, and purchasers. An adverse ruling will render the muzzle brake unmarketable,
eliminate a product line, and cost jobs and revenue to Sig Sauer. A ruling upholding ATF's
classification will also create uncertainty within the firearms industry and among law-abiding
gun owners, as all muzzle brakes could potentially be regulated as silencers under the rationale
articulated by ATF. If ATF's expansive and erroneous ruling is sanctioned by the court, its reach
could sow confusion within the broader manufacturing community, because even non-firearms

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 2 of 25

related dual-use parts, such as lawn mower mufflers, would be subject to regulation because of
their adaptability for use as silencer parts.
Plaintiff Sig Sauer, Inc., is a federally-licensed manufacturer of firearms located in
Newington, New Hampshire. Defendant B. Todd Jones is the Director of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), which administers and enforces the federal Gun
Control Act (GCA), 18 U.S.C. 921 et seq. The Firearms Technology Branch1 is a
component of ATF which Jones supervises, directs, and oversees. Answer (Ans.) s 4, 5.
STATUTORY BACKGROUND
The GCA defines firearm in part as (A) any weapon . . . which will . . . expel a
projectile by the action of an explosive and (C) any firearm muffler or firearm silencer . . . .
921(a)(3). Section 921(a)(24) provides:
The terms firearm silencer and firearm muffler mean any device for silencing,
muffling, or diminishing the report of a portable firearm, including any
combination of parts, designed or redesigned, and intended for use in assembling
or fabricating a firearm silencer or firearm muffler, and any part intended only for
use in such assembly or fabrication.
The GCA imposes licensing requirements on persons who manufacture, import, and deal
in firearms. 18 U.S.C. 923. It imposes controls on the interstate movement and transfer of
firearms. 922. Manufacturers are required to mark firearms with a serial number, 923(i), and
to keep records of their acquisition and disposition of firearms. 923(g)(1)(A). Silencers are
regulated in the same manner as all other firearms under the GCA.
The National Firearms Act (NFA), 26 U.S.C. 5801 et seq., also regulates a more
narrowly-defined subset of firearms. The NFA incorporates the GCA definition of firearm as
including any silencer (as defined in section 921 of title 18, United States Code) . . . . 26
1

Recently redesignated as the Firearms and Ammunition Technology Division, it will continue
to be referred to herein as the Firearms Technology Branch.
2

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 3 of 25

U.S.C. 5845(a)(7). NFA firearms must be registered, 5841, and transfer thereof requires an
application with fingerprints and a photograph, payment of a $200 tax, and approval by ATF.
5811, 5812.
A muzzle brake, which is a device at the muzzle end of the barrel that uses the emerging
gas behind a projectile to reduce recoil or kick from firing a gun, is not encompassed in the
above definitions of firearm or of firearm silencer and firearm muffler. Accordingly, the
provisions of the GCA do not apply to devices that are classified as muzzle brakes. Ans. 10.2
FACTS
The device at issue is intended to achieve Sig Sauers three goals of making a rifle
available with a 16" barrel, with a design that operates properly without high chamber pressures,
and with an effective muzzle brake. Defendant admits that the Plaintiff claims this is their
intent. Ans. 31. Defendant further admits that the device reduces recoil and muzzle rise,
Ans. s 11, 30.
Sig Sauers Initial Submission. By letter dated April 4, 2013, Sig Sauer submitted a rifle,
with the subject muzzle brake affixed to the barrel, to the ATF Firearms Technology Branch
(FTB), requesting confirmation that it is a muzzle brake and not a silencer. Administrative
Record (AR) 790. The device was 9.5" long and was permanently attached by a single weld to
a 6.5" barrel to bring the overall barrel length to 16". The letter advised that the end of the
device is threaded to provide the customer with the option of attaching muzzle devices such as a
flash hider, muzzle brake, or silencer. The letter stated: The device is designed and intended to
reduce the felt recoil of the firearm by directing the propellant gases perpendicular to the axis of
the bore. It will not silence, muffle or diminish the report of the firearm. AR 790.

Defendant consistently misspells muzzle brake as muzzle break.

3

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FTBs Initial Response. The FTB responded by letter dated August 26, 2013. AR 791.
FTB acknowledged receipt of a rifle receiver with a device attached to its barrel, manufactured
and marketed by your company as a muzzle brake . . . . Id. It noted that the device was threaded
on the muzzle end to provide the customer with the after-market option of attaching muzzle
devices such as ... muzzle brake.... Id. FTB called the device a monolithic baffle stack that
is a part intended only for use in the assembly or fabrication of a silencer and, therefore, is a
silencer as defined in 18 U.S.C. 921(a)(3)(C), 18 U.S.C. 921(a)(24), and 26 U.S.C. 5845(a)(7).
AR 793.
Sig Sauer Submits Further Information. By letter dated December 6, 2013, Sig Sauer
submitted further information. AR 644. It documented its sound meter testing of the device
showing that the muzzle device acts to amplify, rather than diminish, the report of a firearm.
AR 644-45. It also documented further testing to demonstrate that the muzzle brake is effective
in reducing recoil and muzzle rise. AR 645-46. It identified similar one-piece units with
machined slots or ports that are being marketed as muzzle brakes and not as silencers. AR 646.
Judicial precedents, such as the First Circuits definitive decision in United States v. Crooker,
608 F.3d 94 (1st Cir. 2010), were cited recognizing intent requirements and the dual uses of
various devices under which the device at issue would not be considered as any part intended
only for use in . . . assembly or fabrication of a silencer. AR 646-48.
FTB Reaffirms its Prior Decision. By letter dated February 21, 2014, FTB reaffirmed its
prior opinion that the device is a part intended only for use in the assembly or fabrication of a
silencer without addressing the further documentation provided by Sig Sauer. AR 809.
After the Complaint was filed on April 7, 2014, ATF requested that this matter be
remanded for further consideration, Sig Sauer consented, and this Court so ordered. Ans. 22.

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 5 of 25

On Remand, ATF Reaffirms its Prior Decision. In an undated letter from Earl Griffith,
Chief, FTB, to Sig Sauer, received by Sig Sauer on August 13, 2014 (Letter), ATF reaffirmed
its prior decision that the device is intended only for use in the assembly or fabrication of a
silencer and, therefore, is a firearm silencer . . . . AR 810, 824. However, ATF conducted
sound-meter testing and found that use of the Sig Sauer device result[ed] in an increase of 2.41,
1.17, and 1.45 decibels to the side, front and rear of the firearm. AR 824 (emphasis added).
ATF stated that, based on its design, an item may be objectively intended for use in
reducing sound rather than to perform an incidental function. AR 813. However, intent
has a plain meaning, and the second portion of the definition of silencer distinguishes design
from intent: any combination of parts, designed or redesigned, and intended for use in
assembly or fabrication of a silencer. 18 U.S.C. 921(a)(24). ATF concedes that the second
definition of silencer does not apply here unless the item is combined with an outer tube. AR
814.
ATF listed ten design characteristics, including household items like washers and steel
wool, it believes are commonly found in conventional firearm silencers. AR 813. ATF
conceded that a silencer may be produced from a conventional muzzle brake when other parts
are added . . . . AR 818. Regarding the device at issue, ATF did not dispute the devices
diminished recoil and muzzle rise. Ans. 26.
Sig Sauers Response. Sig Sauer responded to ATF in declarations dated September 18,
2014, by Steven Shawver, Vice President and General Counsel for Sig Sauer, AR 873,
Declaration of Steven Shawver (SS Dec.) 1; and Ethan Lessard, a Design Engineer for Sig
Sauer, who has a B.S. in Mechanical Engineering and experience designing firearms, muzzle
brakes, flash hiders, silencers, and other muzzle attachments. AR 859, Ethan Lessard

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 6 of 25

Declaration (EL Dec.) s 1-2. Also included were videos showing recoil testing and the
functioning of the bolt when firing. Ans. 27.
Sig Sauer designed the MPX rifle with a 6.5" barrel and a permanently-attached muzzle
brake that extends the barrel by 9.5" for several reasons. First, that gives the rifle a barrel of at
least 16" in length, allowing it to be sold as an ordinary rifle not subject to special legal
restrictions. AR 859, EL Dec. 3; AR 873, SS Dec. 2. Transfer of a rifle with a barrel under
16" in length requires ATF registration and approval and payment of a $200 transfer tax. 26
U.S.C. 5811, 5812, 5841, 5845(a)(3). ATF approval is required for a dealer to sell such a
rifle and for permission to transport such rifle in interstate or foreign commerce. 18 U.S.C.
921(a)(8), 922(a)(4), (b)(4).
None of the above applies to a rifle with a barrel 16" or more in length. Most consumers
who purchase firearms wish to avoid the red tape, delay, expense, and waiver of certain privacy
rights that are inherent in these restrictions. AR 873, SS Dec. 3.
Second, Sig Sauer chose to design the barrel by combining a 6.5" barrel with a rifled bore
and a muzzle brake to extend the barrel to 16", rather than simply using a 16" barrel with a rifled
bore, in part because testing revealed that use of a barrel with a rifled bore over about 8" created
dangerous pressures in the operating mechanism. AR 874, SS Dec. 6. When the cartridge is
fired, the gases push the bolt carrier to the rear and open the bolt, ejecting the spent cartridge
case. If the barrel is too long, dangerous pressures may remain in the brass case during this
sequence, potentially damaging the rifle and injuring the user. AR 860, EL Dec. s 4-5. Too
much energy can also result in failures to extract and eject, and in extreme cases, case head
failures, which can cause the firearm to blow up and injure the user. AR 860-61, EL Dec. s 6-8.

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 7 of 25

A video demonstrates the time between initial bolt carrier motion and the bullet exit. AR
861, 882. Adding barrel length allows the bullet to stay in the barrel longer, increasing the high
pressure while the bolt carrier and bolt continue to open further. AR 861, EL Dec. s 12-14.
Third, use of the muzzle brake that extends the barrel by 9.5" effectively reduces recoil
and muzzle rise (jump). AR 874, SS Dec. 6; AR 862-63, EL Dec. 15. A muzzle brake is
defined as follows: Device at the muzzle end usually integral with the barrel that uses the
emerging gas behind a projectile to reduce recoil. NRA Firearms Sourcebook 439 (2006).
Recoil means: The rearward movement of a firearm resulting from firing a cartridge or shot
shell. Sometimes informally called kick. Id. at 450. The term muzzle jump means: The
generally upward motion of the muzzle of a firearm which occurs upon firing. Id. at 439. AR
862-63.
Testing demonstrates that the full length of the subject muzzle brake contributes to the
reduction in recoil. The braking of the gas pressure and the mass of the device both serve to
reduce recoil. When a cartridge is fired and the gases escape from the muzzle, the gases flow
against all of the surfaces of the muzzle brake, thereby reducing recoil. As shown in the
photographs, these gases leave gunpowder fouling on the surfaces of the entire length of the
muzzle brake. AR 863, EL Dec. 16. ATF did not include length as a factor in its list of
possible silencer features. See AR 815, Letter; AR 872, EL Dec. 49a.
The device here is longer than other muzzle brakes so that, as explained, the barrel is
considered to be at least 16" in length and dangerous chamber pressures that would occur with
use of a longer rifled barrel are prevented. AR 868, EL Dec. 35. Were it not for the legal
restriction on rifles with barrels under 16" in length, the device could be shorter. Nonetheless,

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the length of the device facilitates its ability to diminish recoil and muzzle rise. AR 868, EL
Dec. 36.
Firing the rifle with a shorter muzzle device called the A2 results in the muzzle jerking
upward and the shoulder stock kicking rearward. See video AR 883. Firing it with the MPX
muzzle brake keeps the muzzle in a straight, horizontal position and reduces kick. See video AR
884; AR 863-64, 866, EL Dec. s 17-18, 22-23.
Reduction of recoil and muzzle climb is an advantage when using a 9mm rifle for home
defense and target shooting. Muzzle brakes are even made for .22 caliber rimfire rifles. AR
868-69, EL Dec. s 37-38 (see illustration).
Sig Sauers device is indisputably an effective muzzle brake in that it diminishes recoil
and muzzle rise, and the plan is to market it as such. ATF has not challenged SIGs findings and
has not disclosed whether it even saw fit to conduct its own recoil testing. ATFs acceptance of
the fact that the device reduces recoil and muzzle rise pervades its Letter. AR 876, SS Dec. 15.
Several of the features that ATF states are commonly found in silencers (AR 813, Letter)
are also found in muzzle brakes. These include ported tubes (albeit not ported inner tubes),
which means that they have bleed holes for gases to escape, and baffles to redirect the gases in
such manner as to reduce recoil and muzzle rise. AR 866-67, EL Dec. s 25-26, see also s 2730 & illustrations. ATF describes the SIG item as a monolithic baffle core with expansion
chambers, baffles, angled baffles, holes or slots. AR 813, Letter. Because the device has no
outer tube, it cannot be said to have expansion chambers. Muzzle brakes, including those

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 9 of 25

shown in ATFs photos (AR 821, Letter), generally have baffles, angled baffles, holes or slots.
AR 868, EL Dec. 32.3
Testing conducted by Sig Sauer on the muzzle brakes shown in the ATF Letter (AR 821)
demonstrates that assembly of an outer tube on virtually any muzzle brake creates a silencer. EL
Dec. 34. ATF tested the Sig device by covering it with a rubber radiator hose and found that it
produced a 14.28 dB reduction in sound. AR 868, EL Dec. 42, citing ATF Letter, p. 15 n.2
(AR 824). Sig conducted the same test on a device ATF identified as a muzzle brake (AR 821)
and got a similar result. AR 870, EL Dec. 43. Covered with a radiator hose, the device (called
the Big Chubby) reduced sound by 15.2 decibels (dB). AR 871, EL Dec. 46. Thus, the device
that ATF considers a conventional muzzle brake tested very similar to the Sig device. AR 872,
EL Dec. 48.
Defendant admits that the addition of other parts may effectively reduce the sound of a
firearm. Ans. 32. Such capability does not imply that such devices are, without the addition
of other parts, intended only for use in the assembly or fabrication of a silencer.
To make it adaptable to various further uses, the muzzle brake is threaded on the front
end to allow the use of other muzzle devices such as an extended muzzle brake, flash suppressor,
compensator, combinations thereof; silencer; or blank firing adapter. AR 865, EL Dec. 20.
Finally, ATF noted that SIGs invoice dated 7/10/2014 submitting samples to ATF used
the same part number (8100045) and the word silencer for both the subject muzzle brake and a
part that can be used with other parts to make a silencer. AR 824-25, Letter. ATFs initial
classification letter dated August 26, 2013, opined that the subject item is a silencer and
instructed Sig Sauer to register it as such. AR 791. Sig Sauers calling the item a silencer and
3

The other items listed by ATF as possible silencer parts, such as steel wool and outer tubes and
end caps (used on lawn mower mufflers) have various non-silencer uses. AR 867-68, EL Dec.
31.
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using the same part number for both samples reflects its compliance with ATFs determination.
That will change if the Court rules otherwise. AR 878, SS Dec. 27.
ATFs Final Decision on Remand. ATF made a final decision reaffirming its prior
decisions in a letter from Earl Griffith, Acting Chief, Firearms and Ammunition Technology
Division, to Steven Shawver, dated October 2, 2014. AR 885. It acknowledged Sig Sauers
purported intended use of the item, but failed to discuss the content of Sig Sauers submission
or to suggest in what manner its intended use of the device as a muzzle brake is purported.
Id.
ARGUMENT
Summary judgment is appropriate when the record reveals no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The moving party bears the initial burden of demonstrating the absence of any genuine issue of
material fact, after which the burden shifts to the nonmoving party, who must, with respect to
each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact
could reasonably resolve that issue in her favor. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605
F.3d 1, 4 (1st Cir. 2010).
In determining what constitutes a material fact, we safely can ignore conclusory
allegations, improbable inferences, and unsupported speculation. Coach, Inc. v. Sapatis, 994
F. Supp.2d 192, 197 (D. N.H. 2014), quoting Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.
2002).
This case concerns whether a muzzle brake is a silencer. A muzzle brake is a device
attached to the muzzle (exit end) of a gun barrel to reduce perceived recoil and barrel bounce
that occurs when the gun is fired. Vais Arms, Inc. v. Vais, 383 F.3d 287, 288 n.1 (5th Cir. 2004).

10

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The muzzle brake here reduces both recoil and muzzle rise, and as a matter of law is not a part
intended only for use in . . . assembly or fabrication of a silencer as defined in 18 U.S.C.
921(a)(24). The FTB classification to the contrary, which is final agency action, Ans. 38,
should be set aside as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law. See Administrative Procedure Act, 5 U.S.C. 701 et seq., 551(4), (13). Moreover,
there is an actual controversy between the parties, Ans. 43, and based on the record, the device
should be declared not to be a firearm silencer or firearm muffler in the meaning of 18 U.S.C.
921(a)(24). See 28 U.S.C. 2201(a).
I. THE STATUTORY TEXT AND LEGISLATIVE PURPOSE CLARIFY
THAT A MUZZLE BRAKE IS NOT A PART INTENDED ONLY
FOR USE IN ASSEMBLY OR FABRICATION OF A SILENCER
The definition of silencer was enacted in the Firearms Owners Protection Act (FOPA),
101, P.L. 99-308, 100 Stat. 449, 451 (1986), which amended the Gun Control Act. As adopted,
18 U.S.C. 921(a)(24) provides:
The terms firearm silencer and firearm muffler mean [1] any device for
silencing, muffling, or diminishing the report of a portable firearm, including [2]
any combination of parts, designed or redesigned, and intended for use in
assembling or fabricating a firearm silencer or firearm muffler, and [3] any part
intended only for use in such assembly or fabrication. (Bracketed numbers
added.)
Each of these definitions has intent standards. A lawn-mower muffler could be adapted
for use on a firearm, but it is not a device for muffling a firearm. A combination of parts must
be designed or redesigned, and intended for use in making a silencer, but a combination of
parts is not a silencer merely because it may be adapted to that use. And any part intended only
for use in such assembly or fabrication excludes a part not intended only for such use, even if
it could be adapted to that use.

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The statutory history, administrative interpretation, and judicial construction preceding

enactment of the definition in FOPA demonstrate both the general continuity of intent standards
and the exclusion of muzzle brakes from being considered as silencers. As originally passed and
as reenacted, the NFA defined firearm in part as a muffler or a silencer for any firearm . . . .
P.L. 474, 48 Stat. 1236 (1934); P.L. 90-618, 82 Stat. 1213, 1230 (1968) (emphasis added).4 That
same critical term for, which set a clear standard of intent, also appeared in an NFA regulation
that was on the books until enactment of FOPA:
Muffler or silencer. Any device for silencing or diminishing the report of any
portable weapon, such as a rifle, carbine, pistol, revolver, machine gun,
submachine gun, shotgun, fowling piece, or other device from which a shot,
bullet, or projectile may be discharged by an explosive, and is not limited to
mufflers or silencers for firearms as defined.
27 C.F.R. 179.11 (1985); origin in 6 F.R. 4935 (Sept. 30, 1941); replaced with FOPA
definition in 51 F.R. 39615, 39630 (Oct. 29, 1986).
ATFs predecessor agency did not consider a muzzle brake to be a silencer under the
above provisions, and opined that permanently attaching a sleeve-type muzzle brake to the
muzzle end of a short barreled rifle to lengthen the barrel would remove the rifle from the shortbarreled category. Revenue Ruling 55-570, 1955-2 C.B. 481, 1955 WL 10164 (IRS RRU). AR
880.5
The above was reflected in pre-FOPA judicial decisions. United States v. Schrum, 346
F. Supp. 537, 540 (E.D. Va. 1972), distinguished silencers from other devices as follows:

Also as originally passed, the GCA defined firearm in part as any firearm silencer or
firearm muffler, without defining those terms. P.L. 90-618, 82 Stat. 1213, 1214 (1968).
5
That remains ATFs position today: The ATF procedure for measuring barrel length is to
measure from the closed bolt (or breech-face) to the furthermost end of the barrel or permanently
attached muzzle device. ATF, National Firearms Act Handbook 6 (ATF E-Publication 5320.8,
2009). AR 873-74.
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An example would be a barrel extension or a device to reduce the kick of a

weapon which incidentally reduces the noise level. We feel these legitimate
attachments would not be covered by the definition of a silencer, in and of
themselves, because they do have as one of their primary functions the silencing
or reducing of noise. Any such reduction is merely incidental to a legitimate
purpose and unavoidable.6
The above intent would be expressed in the passage of the FOPA bill in 1986. Known in
the House as the Volkmer substitute, Reps. Harold Volkmer and Bill McCollum formulated the
definition of silencer that would pass.7 Volkmer engaged in the following colloquy with Rep.
Larry Craig to specify muzzle attachments that are not considered to be silencers:
Mr. CRAIG. The language of the silencer definition . . . states that a silencer is
any device [f]or silencing . . . I would like to know if this term is designed to
change the current interpretation. For example, according to BATF, the current
law does not include conventional chokes, muzzle breaks [sic], flash hiders, and
compensators that are not designed or altered to be silencers, even though these
devices may quash sound in addition to their other lawful purposes.
Mr. VOLKMER. My substitute, as modified by the McCollum amendment, does
not change existing law. No conventional choke, muzzle breaks [sic], flash hiders,
or compensators will fit within the definition of silencer in the substitute because
they are not devices for silencing . . . Each of these devices has a common
sporting purpose totally apart from muffling sound. If someone modified these
legitimate devices however for the purpose of silencing, then the modified device
would be a silencer.
132 Cong. Rec. H1757. AR 881.
The references to the current interpretation and existing law refer to the statutory
history, regulatory interpretation, and judicial construction set forth above. While the reference
6

Similarly, United States v. Hurd, 642 F.2d 1179, 1182 (9th Cir. 1981), upheld a jury instruction
accommodating the interpretation that the primary purpose of the devices was to stabilize the
barrel, reduce recoil and eliminate the flash caused by firing, because if noise reduction was an
incidental function of the devices, the court's instruction clearly required them to find that the
devices were not silencers because noise reduction would not have been a primary function.
7

132 Cong. Rec., 99th Cong., 2d Sess., H1675, H1700 (1986). When the Volkmer substitute,
H.R. 945, passed, it then became H.R. 4332, as passed by the House (132 Cong. Rec. H1753),
while a similar House bill (H.R. 4332) [the Judiciary Committee bill] was laid on the table. Id.
at H1757.
13

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 14 of 25

in the plain text of 921(a)(24) to any part intended only for use in . . . assembly or fabrication
of a silencer could not be clearer in excluding a muzzle brake, the above colloquy nicely ties the
text with its history. See United States v. Marshall, 753 F.3d 341, 345 (1st Cir. 2014) ([W]e
apply the presumption that Congress was aware of these earlier judicial interpretations and, in
effect, adopted them.).
Finally, in passing the Firearms Owners Protection Act, Congress made findings that
express its intent as to how the law should be interpreted:
[A]dditional legislation is required to reaffirm the intent of the Congress, as
expressed in section 101 of the Gun Control Act of 1968, that it is not the
purpose of this title to place any undue or unnecessary Federal restrictions or
burdens on law-abiding citizens with respect to the acquisition, possession, or use
of firearms appropriate to the purpose of hunting, trap-shooting, target shooting,
personal protection, or any other lawful activity, and that this title is not intended
to discourage or eliminate the private ownership or use of firearms by law-abiding
citizens for lawful purposes.
1(b), P.L. 99-308, 100 Stat. 449.8
II. THE PLAIN TEXT AS APPLIED IN BINDING PRECEDENT
PRECLUDES APPLICATION OF THE TERMS ANY PART INTENDED
ONLY FOR USE IN A SILENCER TO A MUZZLE BRAKE
FOPAs definition kept the reference to a device for silencing a firearm, adding a
combination of parts, designed or redesigned, and intended for use in assembling or fabricating
a silencer, and any part intended only for use in such assembly or fabrication. 921(a)(24).
The requirement of intent is enhanced progressively for each of these three definitions, with the
third requiring the highest level of intent, which must be exclusive.

See United States v. Thompson/Center Arms Co., 924 F.2d 1041, 1047-48 (Fed. Cir. 1991)
(This admonition . . . requires us to decline the government's invitation to expand the definition
of rifle to encompass the Contender pistol and carbine conversion kit. The government admits
that both pistol and carbine are intended and primarily used for the legitimate purposes of
hunting and target shooting.), affd, 504 U.S. 505 (1992).
14

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 15 of 25

This was the focus of the First Circuit in the definitive decision of United States v.
Crooker, 608 F.3d 94 (1st Cir. 2010), which resolves the issue here. Crooker involved a device
designed to muffle the sound of an airgun, which is not a firearm, but which could be adapted
for use on a firearm. Id. at 95. It was described as a cylinder made of black metal with a hole
running through it, threading that allowed attachment to the muzzle of the airgun and baffles
inside. Id. ATF was able to attach it to an actual firearm by threading an adapter that it
supplied to both the barrel and the silencer. Id. at 96.9
In language that is dispositive here, Crooker observed that the statute by its terms
requires something more than a potential for adaptation and knowledge of it. The statute does not
refer either to capability or adaptation; it speaks of a device for silencing or muffling. The
ordinary connotation of the word is one of purpose. Id. at 97. No evidence existed that either
Crooker or the maker of the airgun silencer intended that it be used to silence a firearm . . . .
Noting the statutes further phrases intended for use and intended only for use, the court
view[ed] all three tests as gradations of purpose made more rigorous as the statute extends from
a self-sufficient device to a collection of parts to a single part. Id.
Since the airgun silencer required a further part (the adapter), it could have fallen
within one of the parts definitions that require intent. Id. Intent to use, not objective
capability of use or knowledge of such capability, was critical, for otherwise the definition
could also extend to a soda bottle or even a potato. The peculiar problem of silencers is that
9

Explaining that an airgun is not a firearm, the court took note of ATF Ruling 2005-4
(paintball gun, which uses compressed air to expel a projectile, is not a firearm under the
statute). Id. The Ruling opined that a permanently-affixed silencer for a paintball gun is not a
firearm silencer because the device is not one for diminishing the report of a portable
firearm. See https://www.atf.gov/files/regulations-rulings/rulings/atf-rulings/atf-ruling-20054.pdf. The device had a ported barrel to allow the escape of gases from a fired round and an
outer sleeve that dampens or muffles the sound when a round is fired, characteristics which are
similar to those of conventional commercial silencers, and it reduced sound when removed
from the paintball gun and affixed to a firearm. Id.
15

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 16 of 25

many objects, including relatively innocent ones, have some capacity to muffle the sound of a
shot. Id. Thus, the range of physical objects that can muffle a firearm is so large and of so
many alternative uses that some filtering restriction is needed to prevent overbreadth and
possibly vagueness. Id. at 98.
To read the statute literally, as we do, is conventional with criminal statutes in order to
provide fair notice, the court concluded, ordering an acquittal. Id. at 99, citing United States v.
Lanier, 520 U.S. 259, 266 (1997). The First Circuits reading applies even more so to this case.
United States v. Syverson, 90 F.3d 227, 229 (7th Cir. 1996), involved a metal cylinder
that could reduce the report of a pistol from 151 decibels to 144.5. Noting the three definitions
of silencer, the court stated: Because Syverson was the designer and manufacturer of the
cylinder, his intentions determine whether it purported to be a silencer. Id. at 232. Evidence
existed that the defendant intended the cylinder to be a silencer instead of a muzzle brake
because muzzle breaks [sic] usually have slots cut into them; these slots are the means by which
muzzle breaks disperse the hot gases expelled from a gun barrel. Id. The cylinder had no
slots and would not have done much, if anything, to reduce the recoil of a firearm, but it did
reduce the report of a pistol, albeit slightly. Id. By contrast, the muzzle brake at issue here has
slots, reduces recoil, and increases the report of a firearm.
United States v. Klebig, 600 F.3d 700, 719 (7th Cir. 2010), concerned whether the
defendant intended to use the oil filter that was taped to the barrel of a long gun as a silencer
rather than as a flash suppressor. Use as a flash suppressor does not require registration. Id. at
704. Testing revealed that the oil filter reduced the rifle report by approximately six decibels.
Id. at 708. The court reversed due to trial errors. Again, the emphasis was on intent.

16

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 17 of 25

Where the parts definitions are at issue, intent to use them on a silencer is enhanced. See
United States v. Rose, 522 F.3d 710, 720 (6th Cir. 2008) (since [t]he statutory definition itself
encompasses parts intended for use in fabricating silencers, a dummy silencer would be
included if the person planned to convert [it] into a silencer). The language of the statute
focuses on the intended application of a silencer . . . . United States v. Carter, 465 F.3d 658,
661, 667 (6th Cir. 2006) (cylinder containing another tube with holes in it and wrapped with steel
wool, screwed onto pistol barrel).
The above were criminal cases, but ATFs classification of a purported muzzle brake as a
silencer was held to be arbitrary and capricious and set aside in a civil case. Innovator
Enterprises, Inc. v. Jones, Civil No. 13581, 2014 WL 1045975 (D.D.C. Mar. 19, 2014)
(Innovator). The device reduced recoil and muzzle rise. Id. at *1.
In Innovator, the FTB decided that the device was a silencer because it had three out of
eight physical characteristics consistent with those on silencers: an expansion chamber, a ported
inner tube, and an end cap. Id. at *2. That was not a satisfactory explanation, for that did not
mean that the device is actually capable of (or designed for) diminishing the report of a
portable firearm,. . . . Id. at *6. A mouse is not an elephant solely because it has three
characteristics that are common to known elephants: a tail, gray skin, and four legs. Id. at *7.
FTB committed the same fallacy here, except that Sig Sauers device allegedly had only a single
feature of a known silencer, and it was not even on FTBs list.
Innovator found that ATF failed to examine the relevant data because it conducted no test
to determine if the device is actually capable of diminishing the report of a gunshot. Id. at
*7. The court found both the purpose and effectiveness of a device to be relevant. Id. at *8-9. If
only purpose is relevant, then a pink silk ribbon tied in a bow around the barrel of a rifle could

17

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 18 of 25

be a firearm silencer as long as the ribbon's (delusional) inventor designed the ribbon with the
hopes that it could be used for diminishing the report of a gunshot. Id. at *9.
The administrative record and the complaint revealed the devices purpose to be to
reduce recoil, muzzle flash, and muzzle rise . . . . Id. at *10. Yet it remained to be seen whether
the device diminished the report of a firearm, as no test had been conducted. The court thus
remanded the matter to the agency for further findings. Id. at *11.10
That is where the posture of the case here parts company from Innovator. Perhaps due to
the bristling Innovator decision coming down before the complaint herein was filed, ATF made
the unusual request that this matter be remanded so that it could make further findings. That
took five months. ATF still acknowledges that the device here increases rather than diminishes
sound, and that it was manufactured and marketed by your company as a muzzle brake, but
that did not change its opinion that the device is intended only for use in a silencer. AR 791,
793, 810, 824. That is wrong as a matter of law.
In sum, the First Circuit in Crooker held that a complete device that could be adapted for
use as a silencer was not for that purpose and was thus not a silencer. Other precedents are
consistent with the First Circuit in focusing on intent. There is no precedent in existence
applying the silencer definition as intended only for use in assembly or fabrication of a silencer
to any circumstances even remotely resembling the device here.
III. THE MEANING OF THE STATUTE IS CLEAR, THE ISSUE
ARISES IN THE CONTEXT OF A CRIMINAL STATUTE, AND
NO DEFERENCE TO AGENCY OPINION IS DUE
No ambiguity exists regarding the meaning of intended only for use. The common
definition of only is: And no one or nothing more besides; solely or exclusively.
10

A review of the docket in Innovator Enterprises v. Jones, Civil No. 13581, shows that,
following the court-ordered remand for reconsideration on March 19, 2014, ATF has still not
reported any decision back to the court.
18

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 19 of 25

http://www.oxforddictionaries.com/us/definition/american_english/only. First, always, is the

question whether Congress has directly spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress. Chevron USA v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842 (1984). That is the case here.
By ignoring the narrow intended only for use standard, ATF may feel that the law will
be easier to administer the FTB can simply consult its checklist and can disregard the actual
intent of any person. However, Congress knows to speak in plain terms when it wishes to
circumscribe, and in capacious terms when it wishes to enlarge, agency discretion. City of
Arlington, Texas v. FCC, 133 S.Ct. 1863, 1868 (2013); id. at 1874 ( Where Congress has
established a clear line, the agency cannot go beyond it). We reaffirm the core administrativelaw principle that an agency may not rewrite clear statutory terms to suit its own sense of how
the statute should operate. Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2446 (2014).
Under Chevron, if the statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency's answer is based on a permissible construction
of the statute. Chevron, 467 U.S. at 842. In the Innovator case, the court held that the FTB
letter was not entitled to Chevron deference because it contain[s] little more than conclusory
assertions and head-scratching revelations about the process that FTB uses to classify silencers.
2014 WL 1045975, *3, 5. ATF failed (1) to articulate a satisfactory explanation for its
decision, and (2) to examine the relevant data before coming to a final conclusion. Id. at *3, 6,
quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983).11
11

And see Tripoli Rocketry Association, Inc. v. BATFE, 437 F.3d 75, 76 (D.C. Cir. 2006), which
set aside ATFs classification of a certain propellant as an explosive because its explanation
19

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 20 of 25

Moreover, ATFs opinion here would not be entitled to Chevron deference in any event.
Christensen v. Harris County, 529 U.S. 576, 580-81 (2000), held about a similar agency opinion
on the law it administers as applied to certain facts as follows:
Here . . . we confront an interpretation contained in an opinion letter, not one
arrived at after, for example, a formal adjudication or notice-and-comment
rulemaking. Interpretations such as those in opinion letters like interpretations
contained in policy statements, agency manuals, and enforcement guidelines, all
of which lack the force of law do not warrant Chevron-style deference.
Id. at 587.
Although FTB opinions applying GCA and NFA definitions to specific firearms and
devices are sometimes referred to as classifications, that is an informal FTB term that is not
provided by law or regulation. Even where a statute authorizes classification rulings, that does
not entitle them to deference. United States v. Mead Corp., 533 U.S. 218, 230 (2001). On the
face of the statute, . . . the terms of the congressional delegation give no indication that Congress
meant to delegate authority to Customs to issue classification rulings with the force of law. Id.
at 231-32. Unlike the statute in Mead, here Congress delegated no authority even to issue
classification rulings.
Yet there is another, fundamental reason why deference may not be accorded to the
agency when application of a criminal statute, as here, arises in a civil case. If any ambiguity
arises, we are construing a criminal statute and are therefore bound to consider application of
the rule of lenity. Crandon v. United States, 494 U.S. 152, 168 (1990). We have never thought
that the interpretation of those charged with prosecuting criminal statutes is entitled to
deference. Id. at 177-78 (1990) (Scalia, J., concurring).

for the decision lacks any coherence. We therefore owe no deference to ATF's purported
expertise because we cannot discern it.
20

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 21 of 25

A statute has the same meaning in a civil case as it does in a criminal case. Given that
penal statutes are to be construed strictly, FCC v. American Broadcasting Co., 347 U.S. 284,
296 (1954), noted: It is true . . . that these are not criminal cases, but it is a criminal statute that
we must interpret. There cannot be one construction for the Federal Communications
Commission and another for the Department of Justice.
Thus, the issue of whether the muzzle brake here is or is not a silencer must be answered
the same in this case as it would in a criminal case, with its high standard of proof.12 To read
the statute literally, as we do, is conventional with criminal statutes in order to provide fair
notice, to repeat what the First Circuit stated about the definition of silencer. Crooker, 608 F.3d
at 99. If Sig Sauers muzzle brake would not be, under the facts here, held to be a silencer in a
criminal prosecution, it cannot be so held here.
The above is well-illustrated in United States v. Thompson/Center Arms Co., 504 U.S.
505 (1992) (plurality op.), a civil case about another NFA firearm definition that is not so
narrow as the intended only for use language here, but which was applied to exclude items
with multiple uses. The court held that a gun manufacturer does not make a short-barreled
(under 16") rifle, if it markets parts as a unit that could be assembled as such, but are intended to
be assembled as a pistol or as a long-barreled rifle. Id. at 507, 510.13
Thompson/Center thus did not involve a set of parts that could be used to make nothing
but a short-barreled rifle . . . . Id. at 510-11. [W]e are not dealing with an aggregation of parts
that can serve no useful purpose except the assembly of a firearm, or with an aggregation having
12

[T]he Due Process Clause protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime. Brown v. O'Brien, 666 F.3d
818, 824 n.1 (1st Cir. 2012) (citation omitted).
13
[T]he definition of rifle requires that it be intended to be fired from the shoulder,
5845(c), and the only combination of parts so intended, as far as respondent is concerned (and
the record contains no indication of anyone elses intent), is the combination that forms a rifle
with a 21-inch barrel. Id. at 523 (Scalia, J., concurring).
21

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 22 of 25

no ostensible utility except to convert a gun into such a weapon. Id. at 513-14. Instead, the
case involved an unregulated pistol that can be converted not only into a short-barreled rifle,
which is a regulated firearm, but also into a long-barreled rifle, which is not. Id. at 514.
Although being construe[d] now in a civil setting, the NFA has criminal applications . . .
. It is proper, therefore, to apply the rule of lenity and resolve the ambiguity in
Thompson/Center's favor. Id. at 517-18. Thus, the Contender pistol and carbine kit when
packaged together by Thompson/Center have not been made into a short-barreled rifle . . . .
Id.
The non-deference rule was set forth most recently in Abramski v. United States, 134
S.Ct. 2259, 2274 (2014), in rejecting ATFs interpretation of a GCA provision:
The critical point is that criminal laws are for courts, not for the Government, to
construe. See, e.g., United States v. Apel, 571 U.S. , 134 S.Ct. 1144, 1151, 186
L.Ed.2d 75 (2014) ([W]e have never held that the Government's reading of a
criminal statute is entitled to any deference).14 We think ATF's old position no
more relevant than its current one which is to say, not relevant at all. Whether
the Government interprets a criminal statute too broadly (as it sometimes does) or
too narrowly. . . , a court has an obligation to correct its error.
This is not a case in which any suggestion of deference should arise in the first place.
Where the statute refers to something intended only for a certain use and the unchallenged
facts establish intent for multiple uses, a court may not defer to an agencys insistence that such
multiple uses must be ignored. Here, ATF acknowledges Sig Sauers intent to offer a muzzle
brake that works; it ignores, but offers nothing to refute, Sig Sauers further intent to offer a rifle
with a barrel 16 in length with a design that avoids dangerously-high pressures. The device at
issue is clearly not a device intended only for use in assembly of a silencer.

14

Apel prefaced this statement by noting about interpretations in Executive Branch documents
such as the U.S. Attorneys Manual: Their views may reflect overly cautious legal advice . . . .
Or they may reflect legal error. Apel, 134 S.Ct. at 1151.
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Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 23 of 25

This truly is a case in which no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). ATF does not really challenge the
facts as presented by Sig Sauer, particularly that the device at issue is not intended only for use
in assembly or fabrication of a silencer. ATF simply seeks to change the plain meaning of those
statutory terms to suit its policy preferences. Since there are no material facts left to uncover, yet
another remand in this case would be futile.
F. J. Vollmer Co., Inc. v. Higgins, 23 F.3d 448, 451-53 (D.C. Cir. 1994), agreed with a
firearm manufacturer that its product was a semiautomatic rifle and rejected ATFs contention
that it was a machinegun. While [t]he administrative record does not contain the reasoning
behind the Bureau's interpretation, which alone would warrant setting aside the agency's action
and remanding the case, ATFs position was legally erroneous and sufficient facts were known
such that Vollmer [the manufacturer] is entitled to a decision on these questions now. Id. at
451. While the issues were technical, the court found ATFs position that the rifle was a
machinegun to be incredible, adding that even if uncertainty existed, we must resolve the
ambiguity in Vollmers favor . . . . Id. at 452.15
So too here, ATFs position that a muzzle brake with multiple uses is intended only for
use in a silencer is incredible, and should any ambiguity exist, it must be resolved in Sig
Sauers favor. Under the undisputed facts here, Sig Sauer is entitled to judgment as a matter of
law.
CONCLUSION
The ATF has had at least four separate opportunities to evaluate correctly Sig Sauers
muzzle brake, including opportunities both before and after suit was filed in this case, after the
15

And see Davis v. Erdmann, 607 F.2d 917, 920 (10th Cir. 1979) (finding ATF firearm
classification a classic example of agency nitpicking, and an arbitrary and capricious action,
and deciding the case on the merits).
23

Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 24 of 25

dispositive Crooker case was brought to its attention, and after the Innovator decision, which
criticized the ATFs analysis in addressing the differences between a muzzle brake and a
silencer. Given these facts, and the record described above, it is clear that the agency has not
followed and will not follow the law, as expressed by Congress, concerning dual-use parts,
unless this Court orders it to do so. Accordingly, Sig Sauer requests that this Court issue
summary judgment in its favor, and (1) hold unlawful and set aside the FTBs determination as
being arbitrary and capricious, and not in accordance with law, and (2) issue a declaratory
judgment that the muzzle brake at issue is not a firearm silencer or firearm muffler in the
meaning of 18 U.S.C. 921(a)(24).
Respectfully submitted,
Sig Sauer, Inc.
By counsel
Date: January 9, 2015
/s/ Stephen P. Halbrook
Stephen P. Halbrook, Pro Hac Vice
Suite 403
3925 Chain Bridge Road
Fairfax, VA 22030
(703) 352-7276
(703) 359-0938 (fax)
protell@aol.com
/s/ Mark C. Rouvalis
Mark C. Rouvalis, NH Bar No. 6565
Kenton J. Villano, NH Bar No. 21220
City Hall Plaza
900 Elm Street
Manchester, N.H. 03101
(603) 628-1329
(603) 625-5650 (fax)
mark.rouvalis@mclane.com
kenton.villano@mclane.com
Counsel for Sig Sauer, Inc.

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Case 1:14-cv-00147-PB Document 19-1 Filed 01/09/15 Page 25 of 25

CERTIFICATE OF SERVICE
I hereby certify that this document was filed by the ECF system and served on all counsel of
record electronically as a result thereof on the 9th day of January, 2015.
/s/ Mark C. Rouvalis
Mark C. Rouvalis

25